Legal malpractice is something that lawyers never like to talk about. It does exist. If it does occur and you have been injured as a result of the malpractice of an attorney, then you may have a basis for making a claim against that attorney.
The elements of a legal malpractice claim are similar to a medical malpractice claim. You must prove that the attorneys conduct was substandard and that substandard conduct, on the attorneys part, caused injury to you.
Within a legal malpractice case the Plaintiff is required to prove a case within the case. What that means is that the Plaintiff, the party bringing the claim, has to prove that the attorney would have won the underlying case in all probability and then further must prove that the failure to win that case was in fact substandard behavior on the part of the attorney.
As you will see from other pages on this website, in any tort claim the Plaintiff has to prove the existence of a duty, a breach of that duty, that the breach caused some injury and then finally what that injury or damage is. The same applies in a legal malpractice claim.
Legal malpractice claims are probably the most difficult tort claims to handle because of the requirement that you prove the “case within the case” as mentioned above. Frequently what exists in a legal malpractice claim is that the attorney may have been negligent but it becomes very difficult to prove that negligence in fact caused damage to the client. Just to give an example in the context of the “case within the case”, although the attorney may have been negligent in terms of not winning the case it may have been that there never was a viable case to begin with. If that is the situation, then the attorney is not guilty of malpractice because his negligence did not cause any damage to the client since the client probably would not have won the case even if the client had been represented by the most competent lawyer in the world.
Most attorneys carry malpractice insurance coverage. That malpractice insurance coverage provides not only a defense in the event they are sued but also indemnification for any judgment or settlement.
My practice in handling legal malpractice cases is to fully investigate them, then make contact with the attorney directly in order to get the attorney’s “take” on things and the consult with the client as to what that attorney says. Legal malpractice claims that only involve judgment calls by the attorney are inherently difficult claims to pursue. By judgment calls I mean such things as whether to call a particular witness at trial, whether to ask a particular question, whether to present a particular item of evidence. Those types of judgment calls become very subjective. On the other hand the failure of an attorney to file a lawsuit in time in compliance with the statute of limitations does not involve any judgment call on the attorney’s part but rather it is simply negligence for the failure to file on time.
If you think you have a basis for a legal malpractice claim, contact us.
